The author is a Forbes contributor. The opinions expressed are those of the writer.

Loading ...

Loading ...

This story appears in the {{article.article.magazine.pretty_date}} issue of {{article.article.magazine.pubName}}. Subscribe

(Photo credit: Wikipedia)

Tomorrow the U.S. Supreme Court will hear arguments that could lead to the end of race-based affirmative action in higher education. Supporters of Abigail Fisher, the white student denied admission to the University of Texas, say she was the victim of a system that elevated skin color above other attributes such as grades or test scores.

Fisher's supporters would seem to have the Fourteenth Amendment on their side. The 1868 amendment states that all citizens are entitled to equal protection under the law. And Chief Justice Roberts, in a 2007 affirmative-action decision, famously stated that the “way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Lawyers arguing for the UT plan, including U.S. Solicitor General Donald B. Verrilli, Jr., have precedent on their side. The U.S. Supreme Court has repeatedly upheld race-conscious admissions policies, most recently in Grutter vs. Bollinger, the 2003 decision upholding a University of Michigan plan that was "highly individualized, holistic" and didn't make "race or ethnicity the defining feature of the application."

The cold, hard facts, meanwhile, show that racial discrimination isn't the biggest problem in higher education. Poor students of whatever race stand a much lower chance of getting into selective schools, as I wrote in May. If students truly benefit from being exposed to the views and life experiences of a diverse selection of classmates, they probably aren't getting much of that at the nation's most elite colleges.

“A lot of admissions officers tend to focus on how `interesting’ a student is,” Richard Sander, a professor at the UCLA School of Law who studies racial and economic disparities in higher education, told me in May. “Being `interesting’ tends to be inversely related to being poor. Doing an internship in Indonesia is incompatible with holding a summer job.”

That leaves a possible good outcome for students even if the court votes to end race-based admissions with Fisher vs. University of Texas, the case being argued tomorrow. Most admissions officers are truly committed to diversity, and believe race is one critical component for achieving it. If race is taken away, that doesn't mean they can't still assemble a diverse class; it just means they have to be more aggressive in recruiting economically disadvantaged students.

Sander’s research into the files at one unnamed “very elite college” showed that in 1999, there was only a 4% chance a black student with SAT scores above 1200 but from the bottom 20% of socioeconomic status would even apply for admission. Equally qualified black students from the top quintile had a 48% chance of applying. The comparable spread for white students was 14% for the lowest quintile and 34% for the wealthiest.

After California voters passed a measure banning racial considerations at the University of California system, minority enrollment at the most prestigious schools fell. Berkeley and UCLA responded by investing in programs to improve public schools to try and increase the pool of qualified minority applicants.

The outcome of Fisher vs. UT, meanwhile, is difficult to guess. Only eight justices are voting, since former Solicitor General Elena Kagan recused herself.

As Lyle Denniston notes over at SCOTUSblog, Fisher's supporters need to attract at least five votes to break a 4-4 tie in favor of the status quo. But Justice Anthony Kennedy, who supplied the deciding vote to reject an affirmative-action plan in 2007's Parents Involved in Community Schools v. Seattle, also said in his concurrance that school officials “may consider it a compelling interest to achieve a diverse student population," and "race may be one component of that diversity.”